All of this followed her declaration Wednesday night, reportedly backed by dozens of House members, to hold back the articles from the Senate, refusing to guarantee the articles would not be delayed indefinitely. Republicans, including Rep. Douglas A. Collins (R-Ga.), Sen. Lindsey O. Graham (R-S.C.) and Senate Majority Leader Mitch McConnell (R-Ky.), are already squawking about the delay.
As an early proponent of the strategy of holding back the articles, I certainly applaud her decision. It frankly is about time Democrats learned to exercise power in the gray areas where no clear precedent exists, a place where Republicans have operated with impunity. At the very least, Pelosi buys time to consider her options and ratchet up pressure on a president frantic to be acquitted.
It has not yet been 24 hours, and Trump already is squealing: "I got Impeached last night without one Republican vote being cast with the Do Nothing Dems on their continuation of the greatest Witch Hunt in American history,” he tweeted. “Now the Do Nothing Party want to Do Nothing with the Articles & not deliver them to the Senate, but it’s Senate’s call!” It is actually the House’s call when to transmit the articles.
Pelosi certainly wants to do more than merely decide what sort of floor managers she will need. She wants to pressure the Senate to have a real trial — specifically to subpoena key witnesses whom the president refused to make available to the House, including former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney. There are two ways she might accomplish the objective, depending upon how long she feels comfortable holding onto the articles.
First, she might lay down the marker: She will not contribute to a sham trial without witnesses. She will send the articles when the Senate agrees to abide by the process Graham demanded before the Clinton trial (when he pleaded for witnesses), as captured by the latest ad by Republicans for the Rule of Law
Trump can stew in his own bile until the Senate comes up with a fair process. But would Pelosi wait forever, never transmitting the articles?
She need not face that question, since there is another possible off-ramp. If McConnell and Republicans refuse to have an actual trial and three Republican senators are not brave enough to object, Pelosi could deploy a backup plan that also addresses Republicans’ professed concerns that they wait on witnesses Trump has blocked by assertion of a phony “absolute immunity” claim.
Pelosi can wait to transmit the articles, now that impeachment is complete, until such time as the cases involving senior officials wind their way through the courts and reach a final ruling (likely at the Supreme Court level where cases concerning production of documents now rest). In short, she can wait until the Supreme Court frees up former White House counsel Donald McGahn and former deputy national security adviser Charles Kupperman (whose case Bolton said he would rely upon for guidance) to testify. (If the Senate still won’t call them as witnesses, the House can hold additional hearings and supplement the record.)
Faced with a client frantic to get a Senate acquittal, Trump’s attorneys might then have a real incentive to get the courts to expedite a determination on witnesses. Who knows? By next year, Bolton may have cashed in on his book deal, published his tell-all and supplied us with his firsthand account of Trump’s extortion plot against Ukraine. Or even more likely, Trump’s lawyer Rudolph W. Giuliani and his henchmen might have disclosed even more damning information putting Trump at the center of the scheme to force Ukraine to assist Trump’s campaign.
In short, Pelosi can give McConnell the chance to do the right thing. She can also give three Republicans the chance to do the right thing by insisting on fair rules. Ultimately, she can simply wait for the courts to do the right thing before entrusting the Senate with the articles of impeachment. We keep hearing from the Republicans that this whole process has been rushed. They might be pleased to learn Pelosi can slow things down. A lot.